Evidence Act amendments, a slippery slope

​NEWS ANALYSIS The recent amendments made to the Malaysian Evidence Act 1950 have far-reaching consequences for everyone who interacts with the Internet, from Facebook users and bloggers to commentators on online news portals and even casual users.

And don't think for a moment that you – the innocent netizen – is safe as long as you're not the one writing potentially offensive comments or sending out material deemed to be seditious from an e-mail account you own, as the new amendments will hold you responsible either way.

According to theSun, changes to the passed Evidence (Amendment) (No 2) Act 2012 would hold Internet users liable for any content posted through their registered networks or data processing devices.

The amended law will have serious implications on Internet use as the owner of a site or device is presumed guilty and has to fight to prove his innocence, the daily noted, citing the concerns of civil society groups.

"What this means is, if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your WiFi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act," theSun noted in its May 21 report.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz, while winding up the Bill in Parliament on April 18, had said the use of pseudonyms and anonymity by any party to commit cyber crimes made it difficult for action to be taken against them, theSun reported. Hence, he said the Evidence Act 1950 had to be amended to address the issue of Internet anonymity, it added.

The interpretation of the amendments to the Evidence Act 1950 was confirmed by legal experts Digital News Asia spoke to.

Foong Cheng Leong , Kuala Lumpur Bar information technology committee co-chairman, said the amendments introduced in Section 114A of the Evidence Act 1950 introduce three circumstances where an Internet user is deemed to be a publisher of content unless proven otherwise by him or her.

Syahredzan Johan (pic), chairperson of the Constitutional Law Committee of the Bar Council, concurred, noting that the amendments can be summarized as follows:

Firstly, if there is a publication, and a person has his name, photograph or pseudonym appearing on it depicting as him as the owner, host, administrator, editor or sub-editor or in any manner facilitating said publication, the person is presumed to have published it.

"So, if there is a newspaper, and the newspaper states that I'm the editor, then there is a presumption that I am indeed the editor," Syahredzan told Digital News Asia in an e-mail interview.

Secondly, a person who is registered with a network service provider as a subscriber of a network service from which any publication originates is presumed to be the person who published or re-published the material.

"In this case, if I have a blog posting and the content is traced to originate from, say, Network Service Provider A, under my name, then there is a presumption that I am the one having published the blog," he said.

Lastly, any person who has in his custody or controls any computer from which any publication originates is presumed to have published or re-published the content of the publication.

"For example, if there is a blog posting and the blog posting was traced to a computer under my custody or control, then I'm presumed to have published it," said Syahredzan.

"All these presumptions are rebuttable because in all three examples, I can adduce evidence to prove the contrary. For example, in point three, I can give evidence that although it's my computer, I was not in control of the computer at the time as I had allowed someone else to use it."

Asked what were the implications of these amendments, Syahredzan said they would have the effect of reversing the burden of proof in both criminal and civil cases, as the amendments affect both kinds of trials.

He noted that in criminal proceedings, it is a significant departure from the accepted notion where the prosecutor is required to prove all the central elements of an offence before a person has to mount a defence.

"It is serious because if, for example, an owner of a computer can be made responsible for whatever information is contained in his computer, notwithstanding that the information could have been entered by a third party, the owner then has an evidential burden to prove his case."

The Kuala Lumpur Bar's Foong added, "Clearly, this is against our very fundamental principal of 'innocent until proven guilty.' With a General Election (GE) looming, I fear this amendment will be used oppressively."

Broader implications
Legal ramifications aside, the amendments made to the Evidence Act 1950 also have chilling repercussions on individuals, corporations and civil society at large, said political scientist Ong Kian Ming.

Ong (pic) noted that firstly, the man on the street would probably be ignorant of this new piece of legislation, but he was quick to add that it would only take one case where someone, say, is investigated for an anonymous posting on his Facebook account, blog or website to spark awareness.

"This could increase the level of fear among the general public that he or she may be prosecuted for someone else's comments," the UCSI University political science lecturer told Digital News Asia in an e-mail interview.

As for corporations and enterprises, Ong said that they would have to be much more vigilant with regard to the kind of postings which appear on their websites and Facebook pages.

"Some may even take the extra step of asking their employees with company-sponsored mobile phones not to have any controversial apps or content in them."

Ong pointed out that the danger of these amendments is that once this door is opened, the government may be tempted to use this law to go after political activists and politicians, even if it was not the original intention of the amendments in the first place.

He added that the amendments are particularly worrying for online news portals as they can easily be investigated for comments published by an online reader in response to certain articles which appear in these portals, and can be used as an excuse to shut down some of them.

Asked why he thought these amendments were made, especially when the GE is around the corner and must be called by April 2013, Ong said that the government does not seem to have made a strong case that this legislation will be effective in preventing cybercrime from happening.

"An example of the kind of cybercrime which this law intends to stop is the taking on of a fake identity in order to 'fool' others into revealing their personal information (passwords, account names) or to send money to them.

"But these kinds of scams can still originate from overseas. A better alternative is for the government to work with the private sector and to have a media campaign to raise public awareness about such cybercrimes instead of using such a blunt instrument that could be used against innocent individuals.

"With such a law in place, one cannot help but to think that it could be used to stifle genuine political debate during the upcoming GE by creating a culture of fear among those using the Internet," Ong said.